In an article published on 3 July, Moonstone reported on the settlement agreement between trade union Solidarity and the government regarding the application of the Employment Equity Act (EEA).
Read: Government and Solidarity sign agreement on employment equity
Sandile July, a director and the head of employment at Werksmans Attorneys, and Nonkosazana Nkosi, a senior associate at the same law firm, provide the following commentary on the agreement.
‘Temporary nature’
The first condition of the agreement endorses the established and accepted principle that affirmative action is of a temporary nature.
“Temporary nature” means that the transformative goals under the EEA may potentially lose their relevance once the transformation intended by the Act has been achieved. Therefore, the transformative agenda remains relevant for as long as there is a need to eliminate employment barriers to designated groups and to promote diversity and proportional representation in the workplace. Where these objectives have been met, it would be difficult to defend the continued relevance of affirmative action. So, the “temporary nature” condition does not alter or introduce anything new to the employment equity regime.
Bar against termination
The settlement includes a bar against the termination of employment as a means of compliance with the employment equity targets. Is this a necessary or helpful condition? No. Employment equity interventions must not apply in violation of a person’s constitutional rights to human dignity, fair labour practices, and freedom of trade, occupation, and profession. Employment policies and practices are still subject to the Labour Relations Act. A dismissal must be lawful and fair. No employer can justify an irrational and arbitrary decision to terminate employment on account of compliance with employment equity targets.
Any employment policy or practice must comply with section 15(4) of the EEA. This provision clearly prohibits the implementation or enforcement of employment equity targets in a manner that creates absolute barriers to prospective or continued employment, including the advancement of individuals who are not part of the designated groups. So, the “no absolute barrier” condition simply reiterates the status quo, as we know it.
Nuanced implementation
The government further undertakes to implement the employment equity interventions in a nuanced way. It appears that this nuance is achieved by prescribing that employment must not solely be based on targets. Employment equity plans and the government’s assessment of compliance with the plans must consider the following criteria:
- The inherent requirements of the job;
- The pool of suitably qualified persons;
- A candidate’s qualifications, skills, experience, and capacity to acquire, within a reasonable time-frame, the ability to do the job;
- The rate of turn-over and natural attrition within the workplace; and
- Recruitment and promotional trends within the workplace.
Are these conditions adding anything new to the proposed regime? No.
In 2018, the government proposed amendments to the Employment Equity Regulations of 2014. The proposed regulation 7A subjects the determination of targets to the very same criteria. In addition, section 15A(2) of the EEA limits individuals who may be considered for the purposes of employment equity targets to candidates who are suitably qualified. The idea that employers will be compelled to comply with employment equity targets at all costs is detached from reality.
Justifiable non-compliance
The agreement also reaffirms the justifiable or reasonable grounds exception incorporated under section 53(12)(b) read with section 42(4) of the EEA. Employers may raise reasonable grounds to justify non-compliance with employment equity targets.
The specific justifiable/reasonable grounds outlined in the agreement are derived from the proposed 2018 Regulation 16(4)(a). These grounds include:
- Insufficient recruitment and promotion opportunities;
- The lack of relevant qualifications, skills, and experience from the pool of candidates;
- A court order;
- Transfer of business;
- Mergers or acquisitions; and
- The impact on business economic circumstances.
Are these conditions different from what government has proposed? No.
The agreement declares that where an employer demonstrates that there are justifiable/reasonable grounds for non-compliance, the employer will incur “[n]o penalties or any form of disadvantage”. What is the significance of this declaration? Does it provide more protection? No. At the very least, the government would be in violation of section 53(12)(b) of the EEA if employers who qualify for exemption under this provision are penalised. Such conduct would be unlawful, arbitrary, and irrational.
July and Nkosi conclude their commentary by saying that, in their view, Solidarity’s complaint to the International Labour Organisation and the resulting settlement agreement were unnecessary. The settlement agreement goes no further than to convey the existing and/or proposed employment equity regime.
Disclaimer: The views expressed in this article are those of the writers and are not necessarily shared by Moonstone Information Refinery or its sister companies. The information in this article does not constitute legal advice.
